Hassan v Iemma
[2008] NSWSC 1476
•29 August 2008
CITATION: Hassan v Iemma [2008] NSWSC 1476 HEARING DATE(S): 25/08/08
JUDGMENT DATE :
29 August 2008JURISDICTION: Common Law Division JUDGMENT OF: Norrish AJ DECISION: 1. Statement of claim dismissed.
2. Statement of claim and affidavits of plaintiff sworn 14/02/08 and 22/08/08 be placed on the Court file in a sealed envelope and that sealed envelope not be opened except by order of the Court.
3. Plaintiff to pay the defendant's costs of the motion.CATCHWORDS: COMMON LAW - removal of counsel - dismissal or 'striking out' of a statement of claim LEGISLATION CITED: Uniform Civil Procedure Rules 2005, Rules 12, 13, 14
Civil Procedure Act 2005, s 131
Supreme Court Act 1970, ss19, 23
New South Wales Consitution Act 1902, ss 5, 35E
Australian Constitution Act 1900
Civil Liability Act 2002, ss 5A, B, C, D, ECATEGORY: Principal judgment CASES CITED: Lewis v Odgen (1984) 53 ALR 53
Ex Parte Bellanto:Re Prior [1963] NSWR 1156
MacGroarty v Clauson (1989) 167 CLR 251
GuarantyTrust Co of New York v Hannay & Co [1915] 2 KB 536
CSR Ltd v Hornsby Shire Council [2004] NSWSC 946
Stack v Coast Securities (No 9) Pty Ltd (1983) 46 ALR 451
Commonwealth v Queensland (1975) 134 CLR 298
Kable v DPP (1995) 189 CLR 84
BLF v Minister of Industrial Relations (1986) 7 NSWLR 372
Shalhoub Holdings Pty Ltd v Commonwealth Bank of Australia [2006] NSWSC 607
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
Cox v Journeaux (No 2) (1935) 52 CLR 713
Peter Kent Development Pty Ltd v ANZ Banking Group Ltd NSWSC, unreported, Hunt J 6 May 1980
Burton v The President of the Shire of Bairnsdale (1905) 7 CLR 76
Brimson v Rocla Concrete Pipes Ltd (1982) 2 NSWLR 937
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
MLC Co Ltd v Evatt (1970) 122 CLR 628
Air Services Australia v Zarb NSWCA, unreported, 26 August 1998
Keating v Bromley London Borough Council [1995] 2AC 633
Agar v Hyde (2000) 201 CLR 522
Simanovic v The Queen [1998] HCA 40
Hunter Area Health Service v Presland {2005} NSWCA 33
Sullivan v Moody (2001) 207 CLR 562
Dorset Yacht Co Ltd v Home Office [1970] AC 1004
Wyong Shire Council v Shirt (1980) 146 CLR 40
Donoughue v Stevenson [1932] AC 562
Hassan v District Court of NSW & Anor, unreported, 10 November 2006TEXTS CITED: R P Lumb, The Constitutions of the Australian States (1991) .
Anne Twomey, The Constitution of New South Wales (2004) Federation Press at 642-645.
MJC Vile, Constitutionalism and the Separation of Powers (1967) Clarendon Press.PARTIES: Omar Hassan - Plaintiff
The Hon Morris Iemma MP - DefendantFILE NUMBER(S): SC 020044/08 SOLICITORS: Omar Hassan - Plaintiff
Crown Solicitors Office - Defendant
JUDGMENT
Introduction
1 On 14 February 2008 Omar Hassan (“the plaintiff”) by statement of claim commenced proceedings against “The Honourable Morris Iemma MP Premier of New South Wales” (“the defendant”). The plaintiff, who represented himself, and the defendant, represented by the Crown Solicitor instructing Mr Hutchings of Counsel, appeared before this Court on Monday 25 August 2008 in respect of two issues arising out of the filing of the statement of claim and subsequent proceedings.
2 The plaintiff, firstly, seeks an order from the Court “to prevent (Mr Hutchings) from representing the defendant”. This application arises out of correspondence addressed to the Registrar of the Common Law Division of 19 May 2008 and 13 June 2008. The defendant, by Notice of Motion filed on 14 May 2008, seeks orders, either that the plaintiff’s statement of claim be dismissed pursuant to Rule13.4 Uniform Civil Procedure Rules 2005 (“the Rules”) and that the statement of claim be “sealed” on the Court’s file pursuant to Rule 4.15 of the Rules, or, in the alternative, an order that the statement of claim be “struck out” pursuant to Rule14.28 of the Rules and that in consequence the plaintiff may be given leave to replead, as well as consequent orders.
3 Although the plaintiff has not filed a notice of motion in respect of his application for the defendant’s counsel to be disqualified from appearing, leave has been granted for the application to be pressed on the basis of the material set out in the letters that have been addressed to the Registrar of 19 May and 13 June 2008. The plaintiff had told the Registrar on 12 June 2008 he would not file a notice of motion, as he did the Duty Judge on 15 May 2008. In the course of hearing argument in relation to this issue it was apparent that no ‘Notice of Appearance’ had been filed by the defendant, notwithstanding an order by the Registrar to that effect when the matter was first listed for status conference on 3 April 2008. Time for filing or entering an appearance is 28 days (Rule 6.10). Leave was granted to dispense with the requirements of the Rules in this respect, pursuant to s14 Civil Procedure Act 2005, during the hearing of these applications and that is the subject of a separate judgment. In respect of the orders sought by the defendant no evidence has been filed by the defendant in support of the motion. The application proceeds on the basis of the form and contents of the statement of claim and supporting evidence filed by the plaintiff in affidavit form.
Background of these Proceedings
4 In order to understand the basis of the respective applications there is a need to set out something of the history of the matters from such evidence that is before the Court in support of the respective applications and what is evident from the Court file.
5 Some background to the current litigation is to be found in the affidavit of the plaintiff sworn 14 February 2008 filed in support of the statement of claim. In paragraphs 4 to 6 of that affidavit he referred to District Court proceedings commenced on 19 May 2003 relating to alleged conduct by the NSW Police occurring on 5 September 2002. The plaintiff alleges that his “disabled wife” who had just left hospital after major surgery and his daughter, who was 15 years of age, were “unlawfully arrested by police” and were subject to “assaults, humiliation and degradation” (para 11 – affidavit sworn 14 February 2008). The affidavit of the plaintiff asserts that the proceedings were “unlawfully and illegally terminated by District Court Judge” on 20 October 2005. I take it that those proceedings were commenced against the State of New South Wales, representing the NSW Police Force. The plaintiff commenced proceedings on 12 September 2006 in this Court, apparently suing the District Court and others. His affidavit asserts that these proceedings were “also terminated … on unlawful and illegal grounds by a Supreme Court Judge who refused to disqualify himself after his judicial competence was questioned (etc)”. I was informed by the plaintiff that the Judge who dismissed the proceedings commenced in 2006 in this Court was Johnson J and the order of dismissal was made on 10 November 2006. His judgment I have read as those proceedings were referred to by the plaintiff.
6 The plaintiff commenced the current proceedings against the defendant by statement of claim dated 14 February 2008. On that date a “Notice” was issued by the Supreme Court registry advising of a Status Conference to be held on 15 May 2008 at 9.00 am. The notice was, it would appear, in what might be called the “usual form” and the statement of claim had noted upon it the conference date. The Affidavit of Service of the statement of claim upon the defendant, sworn by the plaintiff on 13 March 2008, reveals that the statement of claim was served, with a copy of the ‘Notice of Status Conference’ and the plaintiff’s affidavit in support of the statement of claim, by delivery to the defendant at his place of business by registered post. Confirmation of delivery was received on 16 February 2008. On 6 March 2008 the Crown Solicitor’s Office wrote to the plaintiff at the address provided on the statement of claim, advising that the Premier had made an application for “Crown representation”, that Rule 14.3 of the Rules required the defendant to file a defence within 28 days, but that “Practice Note 1 (of the Common Law Practice Notes)” required the plaintiff to serve a timetable for the conduct of the case at the time of serving the statement of claim (which had not been done), that the defendant was unable to file the defence at this point as enquiries needed to be undertaken and that the Crown Solicitor proposed that orders be made regarding the future conduct of the matter, including filing a defence, at the Status Conference on 15 May 2008.
7 The Crown Solicitor’s Office sought advice from the plaintiff as to whether this course of action was suitable and requested that the plaintiff not enter judgment until a reasonable period of time for making enquiries had elapsed. I have no evidence of any reply from the plaintiff but it is not suggested that the correspondence was not received. No attempt has been made to enter judgment by the plaintiff. However on 13 March 2008 the Crown Solicitor’s Office wrote to the Registrar of the “Supreme Court Common Law Division”, enclosing the letter of 6 March 2008 sent by registered post to the plaintiff, advising that there had been no response at that point and requesting that should Mr Hassan seek to enter default judgment in the proceedings before 15 May 2008 the Crown Solicitor’s Office wanted to be informed so that opportunity could be made to appear before the Court and be heard on any such application. A request was also made to list the proceedings for an earlier status conference, if the Registrar considered that to be appropriate “in the circumstances”. I have evidence from the plaintiff’s later correspondence to the Court of his receipt of the letter of 13 March 2008. On 19 March 2008 “in chambers” the Registrar made orders listing the Status Conference on 3 April 2008 and directing that Notices be issued to the plaintiff and the “Crown”.
8 The Registrar by “Notice” dated 20 March 2008, forwarded to both the plaintiff and the Crown Solicitor’s Office, listed the matter for Status Conference on 3 April 2008 at 9.00 am. Both parties appeared before Registrar Bradford and the matter was stood over to 15 May 2008. The Registrar ordered on that date that the Crown Solicitor’s Office file a Notice of Appearance by 4.00 pm on 4 April 2008 and that the defendant request particulars in relation to the statement of claim by 24 April 2008. There was no order, that is noted on the “Record of Proceedings”, that a defence be filed by a particular date as claimed by the plaintiff before this Court. On 14 May 2008 the defendant filed a notice of motion seeking the orders now pressed by him and the motion was listed before a Registrar on 12 June 2008. On 15 May 2008 the matter came before the Duty Judge and no orders were made by Justice Hoeben.
9 On 12 June 2008 the Registrar listed the defendant’s notice of motion for hearing on 25 August 2008. The Registrar noted on the “Record of Proceedings” that he had advised the plaintiff that if he wanted to file a notice of motion, presumably in relation to the conduct of the defendant’s counsel, he should do so. However Mr Hassan indicated he would not. This he confirmed before this Court.
11 In relation to the listing of the matter before the Duty Judge the plaintiff alleged against the Duty Judge that he had “falsely declared in open court that the (role) of the Duty Judge is to deal with matter that are of extreme urgency” (sic) and that the Duty Judge declined to deal with the matter, including allegations brought by the plaintiff that the Registrar had carried out his duties in “an improper manner”. He claimed the Duty Judge had refused to allow him to submit evidence, denied him his lawful rights and said that the Duty Judge was “incorrect in directing the plaintiff to file a motion in order to seek that Mr Hutchings does not appear on behalf of the defendant”. He declared in the letter10 On 19 May 2008 the plaintiff had written a letter to the Registrar of the Common Law Division of this Court, claiming “the Registrar, having acknowledged that the defendant was at default for not taking any step in the proceedings …. ordered that the defendant make an appearance by 4.00 pm on that day, the defendant to file a Defence by 24 April or alternatively to seek to strike out the statement of claim, the defendant to seek further and better particulars by 24 April and (that) 15 May 2008 to remain the date for the status conference”. No note is made of an order to file a defence or move to strike out the proceedings within a particular time on the “Record of Proceedings”. No alteration or amendment appears on the “Record”. The plaintiff claimed in this letter that Registrar Bradford had “deceived” him by discussing the matter in his absence and was “instructed by the Crown to leave out the second order which compelled the defendant to file the Defence by 24 April 2008”. He sought that the Registrar refrain from further dealing with the matter and disqualify himself on the basis of “bias” and because of his “dishonesty and improper conduct”. Mr Hassan, amongst other matters, noted that he objected to Mr Hutchings appearing on behalf of the defendant “due to the fact that Mr Hutchings on a previous occasion, appeared before the Court against the plaintiff and attempted to mislead the Court”. I am not provided with any particulars of that aspect. The current claims of the plaintiff relate to proceedings on 12 June 2008.
“The matter was before the Duty Judge for merely a few moments during which an unprecedented shocking display of unreserved support for the Premier and his mob was demonstrated by the Duty Judge”.
13 The plaintiff wrote:
12 The plaintiff was indicating, I take it, that Hoeben J had been told by him that he would not file any Motion to remove Mr Hutchings. The plaintiff wrote that he was “convinced that such order can be granted by writing this letter to Supreme Court asking the court to make an order to prevent Mr Hutchings from appearing on behalf of the defendant”. He asserted that Mr Hutchings ought not be allowed to appear on behalf of the defendant and that if he is required to file a motion seeking this order the court should provide him with an explanation “as to why the (c)ourt has granted orders sought by the defendant upon the defendant requesting those orders by writing to the (c)ourt and without having to file a notice of motion”. I take the plaintiff to be indicating, in effect, that ‘what was good for the goose was good for the gander’.
“The Supreme Court and its judges are advised that neither the court nor its judges are agents for the NSW Premier, and therefore they are advised to abstain from showing any bias towards the government”.
14 I note in passing that the plaintiff wrote other letters to the Registrar such as the letter dated 18 March 2008 acknowledging receipt of the letter written to the Registrar dated 13 March 2008 enclosing the correspondence sent to Mr Hassan dated 6 March 2008, in the course of a making a number of allegations against the defendant and others. Beyond their relevance to ascertaining the plaintiff’s understanding of proceedings where he was present, I have paid no heed to their other contents on the basis that they have not been pressed or referred to by the plaintiff. Throughout the proceedings before myself I have been prepared to receive any relevant material pressed by the plaintiff. No documentary material that he has tendered has been rejected.Application to disqualify or remove counsel for the defendant
15 The plaintiff seeks the removal of counsel for the defendant on the following grounds:The plaintiff’s contentions
1. That on 12 June 2008 he (Mr Hutchings) misled the Court when he informed the Court that he was “expecting a motion from the plaintiff regarding the plaintiff’s application to prevent him from representing the defendant”
The basis of this complaint was that no order had been made by the Duty Judge on 15 May 2008 for the plaintiff to file any motion seeking the removal of counsel and that the plaintiff had “made it very clear to the Duty Judge on that day that he would not file any motion in that regard”. It is asserted that as Mr Hutchings was present during that hearing and being aware of the fact that there was no motion to be filed by the plaintiff, his statement on 12 June 2008 was false and was an attempt to “mislead the Court”.
2. That Mr Hutchings misled the Court a second time when he “falsely alleged that he did not receive a copy of a letter dated 19 May 2008 which was sent to the Supreme Court Registrar asking him to deal with the issue of Mr Hutchings representation and seeking an order to have Mr Hutchings disqualified from representing the defendant in this case”.
In respect of this matter, it is asserted that the letter of 19 May 2008 was served on the Crown Solicitor’s Office on 20 May, and as the letter related to Mr Hutchings it was “highly unlikely that the Crown Solicitor’s Office would not have provided Mr Hutchings with a copy of that letter”.
3. That Mr Hutchings’ conduct has been “inappropriate”, “unlawful” and “illegal”.
The plaintiff claimed that Mr Hutchings had attempted to disobey “Court rules”. In relation to the matters of “overall conduct” the plaintiff points to matters such as, no appearance had been filed in the matter contrary to order of the Registrar, the defendant had not filed a defence, the defendant had been in breach of Rule 18.1 (sic) and that not only was this conduct “inappropriate” it was also “unlawful” and “illegal”. I raised with the plaintiff the fact that on his own version he refused to file a motion when directed (requested) to do so and his response was to the effect that “he (Mr Hutchings) started it”.
16 In justification or support of a power by the Court to “remove Mr Hutchings” the plaintiff only referred to s131 Civil Procedure Act 2005 , which provides:
“Nothing in this act or the uniform rules limits or otherwise effects the power of the Court to attach or commit a person for contempt”.
17 I understand that the plaintiff asserts that the defendant’s counsel by misleading the Court and/or by acting quite inappropriately or “illegally” or “unlawfully”, as earlier asserted, was in contempt of Court and thus had, as I understood the submission, forfeited his right to appear or should be ‘removed’.Mr Hutchings’ Submissions
18 At the outset, although it was not raised before me, I note that Mr Hutchings may be seen to be an advocate in his own cause, so to speak. Although this issue was not addressed by anyone, including myself, with the wisdom of hindsight I see no impropriety in Mr Hutchings meeting the issues raised by the plaintiff. Counsel often are required to respond at the bar table in respect of issues as to their own conduct. No evidence was given from the bar table in any event on these matters. In relation to the first matter raised by the plaintiff, Mr Hutchings, a legally qualified practitioner with a right of appearance on behalf of a party in the Court, asserted there had been no finding of contempt in respect of his conduct, and in any event a finding of contempt would require a finding of a high level of misconduct which is absent from the plaintiff’s particulars. In his submissions he appeared to accept what had been asserted to have been said by him on 12 June 2008, but said in the circumstances what he had said was an expression of “no more than an expectation” that he had. What he said had no impact upon the proceedings, as the matter was before a Registrar, not a Judge, and any application of the type foreshadowed by the plaintiff would need to be dealt with by a Judge. He understood that the Registrar had made no order requiring the filing of a motion, in any event and he did not assert that such order be made. I note he was prepared before to deal with the issues raised by the plaintiff on their merits, without any motion being filed by the plaintiff. Clearly the plaintiff had been requested to do so by both the Registrar and Hoeben J.
19 In relation to the second aspect of the plaintiff’s application, Mr Hutchings said that there was no evidence that he had seen the letter and that the plaintiff’s own correspondence of 13 June 2008 (at paragraph 4, where the plaintiff particularised the basis of this complaint), makes an assumption that he (Mr Hutchings) would have seen the letter. Mr Hutchings pointed out that in his own letter the plaintiff made the observation that a failure to provide the letter to Mr Hutchings was a matter that would reflect upon the Crown Solicitor’s Office. This was said to be an acknowledgment of an absence of evidence to justify the claim.
20 In relation to the claims of “inappropriate”, “illegal” and/or “unlawful” conduct particularised against the counsel, Mr Hutchings said he was unaware that an appearance had not been filed, and asserted that his understanding was that there would be no need to file a defence as it had been foreshadowed by his solicitors from an early stage that the defendant would be seeking advice as to whether the statement of claim ought be dismissed or struck out before any steps were taken to formally defend the proceedings. This had been advised to the Court and the plaintiff. Later in these proceedings he revealed, from a file note of his solicitors, that no record was made of the Registrar’s order for an appearance to be filed by 4 April 2008. The solicitor who appeared for the Premier at the first Status Conference no longer worked at the Crown Solicitor’s Office.
Consideration
21 At common law words or conduct in the face of the court, or in the course of the proceedings, in order to constitute contempt, must be such as would interfere, or tend to interfere with, the course of justice: Lewis v Ogden (1984) 53 ALR 53. On this test there is no reasonable basis for concluding that the counsel for the defendant is in contempt of court, as is asserted by the plaintiff. There is no evidence of a defiance by counsel of an order of the court, wilful or otherwise. What orders the defendant may not have complied with were made in Mr Hutchings absence and were matters of a technical nature, given correspondence to the court, that fell with the solicitor’s responsibility. No injustice has been caused to the plaintiff by any alleged failure to file an appearance or even file a defence for that matter. Of course, behaviour that amounts to defiance of the Court’s authority may be contempt of court ( Ex Parte Bellanto: Re Prior [1963] NSWR 1156: MacGroarty v Clauson (1989) 167 CLR 251). There is no evidence of defiance by counsel of the Court’s authority. In relation to the first matter raised by the plaintiff, it was not unreasonable for the defendant’s counsel to maintain an expectation that the application for him to be disqualified by an order of the Court would be in the form of a notice of motion as at 12 June 2008. This is so, notwithstanding statements made by the plaintiff on 15 May that he would not file any motion on the issue, assuming that was said. The first record held by the Court of the plaintiff indicating that he would not file a notice of motion was on 12 June 2008.
22 The second complaint raised by the plaintiff concerning the defendant’s counsel’s conduct proceeds upon an assumption, but with no direct evidence. Counsel for the defendant said that he had not seen the letter of 19 May. There is no evidence that he did. In the absence of any particulars in the letter of 19 May as to Mr Hutchings’ conduct, there would not necessarily be an expectation that his instructing solicitor would provide the letter to him. This letter would need to be understood in the context of other allegations made in other correspondence from the plaintiff. No finding of impropriety could be reasonably made. No contempt is evident. In any event, even if it could be established, which it is not, that counsel had misled the court, having regard to the detail of the letter of 19 May 2008 and given that no decision could be made by the Registrar relating to the contents of the letter as at 12 June 2008, there was no prejudice to the plaintiff or to the Court in any form by the alleged misrepresentation of the defendant’s counsel. There could be no embarrassment to the plaintiff either. He was willing to tell the Court, at each opportunity, that he would not file a motion. On the first opportunity for the application of the plaintiff to be considered by the Court, that is 25 August 2008, the application was heard, without a notice of motion, by consent of the defendant, based on the material set out in the correspondence addressed to the Court by the plaintiff.
23 The matters raised by the plaintiff concerning the “inappropriate”, “illegal” and/or “unlawful” conduct of Mr Hutchings or by the defendant implicating counsel, have no substance. It would appear correct that an appearance was not filed as directed by the Registrar, but the counsel for the defendant did not appear on that occasion. Based upon the file note that was read to the Court by counsel for the defendant, he could not have known of the order to file an appearance, which was his solicitor’s responsibility in any event, unless he enquired of the Registry, because the then instructing solicitor made no note of the order and he was not present. Given the correspondence of 13 March 2008 from the Crown Solicitor and his appearance at the first status conference, there was a reasonable apprehension available to Mr Hutchings at a later time that the Court, and the plaintiff , on 3 April expected the defendant to be represented. The Court had a point of contact for the defendant. There was even an informal submission to jurisdiction. In any event the matters complained of by the plaintiff were the responsibility of the Crown Solicitor, or for instruction by the defendant. The plaintiff was aware the defendant was not going to file a defence until he had properly considered his position, or was advised that the plaintiff was going to move for summary judgment. There is no evidence that counsel for the defendant had instructed the solicitors not to comply with the orders of the Court or that counsel for the defendant had knowingly acted contrary to the orders of the Registrar.
24 As for alleged non compliance with the Rules by the defendant, Mr Hutchings, on the material available to this Court, had no personal responsibility in that regard. In any event it does not appear that there could be any reasonable basis for concluding that Mr Hutchings was in contempt of court by any purported failure to comply with the Rules by him, as opposed to defying an order of the Court binding him. Failure by a party to comply with an order of a Registrar (who is the only person to make orders to this point) would not necessarily constitute a contempt of court in any event. It would depend upon matters such as the wilfulness of the breach, surrounding circumstances of it, whether there was some “innocent” explanation, inadvertence or ignorance of material matters.
25 In the circumstances I do not believe I need consider the power of this Court to direct counsel to withdraw by reason of alleged misconduct. I decline to “order” that Mr Hutchings withdraw or be removed from representing the defendant, assuming jurisdiction to do so (an issue not properly argued by either party). There is no evidence that could reasonably lead to a conclusion of a contempt of court, allowing for all of its potential forms, as for example discussed in the commentary to Part 55, Supreme Court Rules, Ritchies Uniform Civil Procedure .
The defendant’s notice of motion
Jurisdiction to entertain notice of motion
27 That Rule is in Part 12, Division 4, of the Rules and states:26 The plaintiff in his response to the defendant moving for the orders sought in the notice of motion filed on 14 May 2008 raised as a threshold issue that there was no jurisdiction to entertain the motion because it had not complied with Rule 12.11. He says the motion was filed ‘out of time’.
(1) In any proceedings, the court may make any of the following orders on the application of a defendant:
(a) an order setting aside the originating process,
(b) an order setting aside the service of the originating process on the defendant,
(c) an order declaring that the originating process has not been duly served on the defendant,
(d) an order discharging:(e) an order discharging any order extending the validity for service of the originating process,
(i) any order giving leave to serve the originating process outside New South Wales, or
(ii) any order confirming service of the originating process outside New South Wales,
(f) an order protecting or releasing:(g) an order declaring that the court has no jurisdiction over the defendant in respect of the subject-matter of the proceedings,
(i) property seized, or threatened with seizure, in the proceedings, or
(ii) property subject to an order restraining its disposal or in relation to which such an order is sought,
(h) an order declining to exercise jurisdiction in the proceedings,
(i) an order granting such other relief as the court thinks appropriate.
(2) Such an order may not be made unless notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings.
(3) Notice of motion under subrule (2):(4) The making of an application for an order under subrule (1) does not constitute submission to the jurisdiction of the court (emphasis added).
(a) may be filed without entering an appearance, and
(b) must bear a note stating the applicant’s address for service.
28 Relevantly the plaintiff asserts that an order “setting aside the originating process” (in this matter the statement of claim) cannot be made unless the motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings. The time for filing an appearance is 28 days (Rule 6.10). The motion was filed on 14 May 2008, three months after the filing of the statement of claim however, the defendant’s motion seeks dismissal of the statement of claim pursuant to Rule 13.4 and other orders.29 As the transcript will reveal I was only a little assisted by the submissions received in relation to the meaning of Rule 12.11. It was asserted by the defendant’s counsel that it was a rule concerned only with “service”, based upon the “Summary note” set out under the heading at the commencement of Part 12 of Ritchie’s Practice. The “Summary Note” asserts “This rule sets out the Court’s power to set aside the service of originating process”. In its terms, particularly, subrule (1)(a) this may not be so.
30 Subrules 12.11(1)(a) and (2) are, on one view, strangely worded, suggesting a time limit for filing an application to set aside “originating process”. However, the purpose of the rule is not to provide sole relief for a defendant to “set aside”, “dismiss” or “strike out” a statement of claim, as originating process. Rules 13.4 and 14.28 set out power for “dismissal” or “striking out” by the Court, as sought in the defendant’s notice of motion in this matter. The significance of Rule 12.11 is that it prescribes a basis for a defendant to strike out originating process without submitting to jurisdiction or conceding jurisdiction of the Court to determine issues adverse to the interests of the defendant. This can be seen in the context of the Part and particularly the complete terms of Rule 12.11. The Rule provides a requirement to file any relevant application before the time for filing a notice of appearance is expired to enable jurisdiction to be determined first.
31 In support of this conclusion are the following matters that arise from the Rules. First, Rule 6.1(2) permits a defendant not to file an ‘appearance’ where application is made pursuant to Rule 12.11. Then there are the terms of Rule 12.11(4). Further, Rules 13.4 and 14.28 provide specific “remedies” for a party irrespective of whether an appearance has been filed. Rule 14.28 specifically provides for the right of a party to file an application at “ any stage of the proceedings ” to “strike out” a pleading. Rule 13.4 provides specifically that “if it appears to the Court in any proceedings” that a claim or part of a claim is vexatious etc it may dismiss “the claim or relevant part of it”. This rule does not impose any ‘time limit’ for making a relevant application to dismiss. It invites consideration of such an application “in … proceedings”, which could be at any time. Having regard to the ‘structure’ of the Civil Procedure Rules, and the context of the Rule in question, I cannot read Rule 12.11 as qualifying or limiting the operation of Rules 13.4 or 14.28 in any way.
32 Rule 13.4 providesDismissal or striking out the Statement Of Claim
(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.
(2) The court may receive evidence on the hearing of an application for an order under subrule (1).
Rule 14.28 I shall refer to later in summary form.
33 The plaintiff seeks relief in his statement of claim in the following terms
“1. The plaintiff seeks to be awarded damages for psychiatric injuries he suffers, arising out of the conduct of the defendant in this matter, as particularised in paragraphs (43) to (46) of his document. The amount of damages to be determine prior to trial (sic).
2. The plaintiff seeks an order that the defendant or his successor to hold a parliamentary inquiry into the victimisation, humiliation and degradation of the plaintiff and his family who have been subjected to violation of their human, civil, legal and lawful rights (sic).
3. The plaintiff seeks an order that the NSW Premier to stand down (sic).”
34 The plaintiff thereinafter between paragraphs 1 to 42 of the statement of claim sets out a number of matters that might be categorised as facts alleged to be relevant to the relief sought, pleadings relevant to the relief sought and other matters which might variously be categorised as submissions, opinions, postulations, beliefs and theories. In relation to those last aspects I refer to paragraph 31 of the statement of claim as an example, where the plaintiff claims:
“The plaintiff asserts that the defendant is under the strongest conviction that he has the ability to terminate any legal proceedings that commenced against him by simply picking up the phone and instructing the judge to terminate the proceedings. The defendant is under the illusion that to do so, to instruct judges, this is quite legal and lawful since the judges are employees of the Attorney General’s Department making the justice system under the control of the government and the government is entitled to instruct them. The defendant and his department consider it appropriate for the judges of the District and Supreme Courts to receive instructions form (sic) the defendant”.
35 Later at paragraph 40 the statement of claim asserts
“It may appear to this Court that the plaintiff is obsessed by the matters giving rise to this claim. Understandably the plaintiff raises his concern but that is not to say that he is not entitled to pursue matters of law. In some instances the allegations made against the Premier, his Police Commission, Police Minister, the Crown Solicitor, his Attorney General and some Judicial Officers from the District and Supreme Courts are extreme, but they are no reason for concluding that the claim is baseless or without merit (sic)”.
The contentions of the partiesOrders sought to set up a Parliamentary inquiry and remove ‘the Premier’
36 In relation to paragraphs 2 & 3 of the relief claimed by the plaintiff, the defendant asserts that this Court has no power to order Parliament to conduct an inquiry in relation to the treatment of the plaintiff or his family, nor does this Court have power to order the NSW Premier, as a Minister of the Crown, to “stand down”.
37 Counsel for the defendant acknowledged that the orders sought perhaps may be regarded as seeking some declaratory relief, (s 75 Supreme Court Act 1970), although in their terms they seek to compel the defendant to do certain things (conduct a Parliamentary inquiry) or compel whoever has power to remove the Premier. If it was declaratory relief sought it did not have the effect of resolving the issues between parties CSR Ltd v Hornsby Shire Council [2004] NSWSC 946. Notwithstanding the wide powers of the Supreme Court, either inherent or statutory, it was submitted that there was absolutely no precedent, no prior order of the Court or anything else by way of decision of the Court, or any legislative or Constitutional power, which entitled the Court to make orders of the type sought in paragraphs 2 and 3. One order sought the defendant to do something that he could not do personally, the other sought the Court to do something that it could not do directly.
38 The plaintiff’s contention was that he was not obliged to produce the “evidence” or to “prove” that the Court had power to make the orders sought and that the issues raised by the defendant as “jurisdictional issues” concerning the powers of the Court to make the orders sought were matters to be determined at trial, after the issues of fact had been litigated. Relying upon the old Supreme Court Rules the plaintiff submitted that he did not have to “state the legal consequences which follow from the facts upon which he relied. Rather, it is for the Court to declare the law arising from the fact(s) provided (for) it” (sic). He relied upon some material obtained from the Premier’s Department website concerned with the functions of the Executive, the Legislature and the duty of the Judiciary to ensure that the executive complied with the laws passed by the legislature. When asked by the Court to identify any authority for the proposition that the Court had power to order Parliament conduct an inquiry into a particular matter or order the defendant to make Parliament conduct an inquiry or to order a Minister of the Crown, including the Premier, to “stand down”, the plaintiff could not offer any. He told the Court that it had been done before, but gave no examples. I raised the “dismissal” of the Lang Government in 1932 by Sir Philip Game, as Governor of New South Wales. No exercise of “judicial power” was involved in that action by the Governor, so far as I can discern. (“ The Constitutions of the Australian States ” R P Lumb (1991); “ The Constitution of New South Wales ”: Anne Twomey, Federation Press (2004) at pp 642-645 ).
Consideration of power to make ‘orders’ sought
39 It has been held that in relation to the power under s75 Supreme Court Act , to grant declaratory relief it is not necessary that the claim be based on a cause of action ( Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536), however it has been held, that either as a matter of discretion, or as a limitation upon the power, a declaration should not be granted if it does no resolve an issue between the parties. Here neither the removal of the ‘Premier’ or a Parliamentary inquiry would resolve an issue between the parties ( CSR Ltd v Hornsby Council (at [27])). In fact, when one looks at the detail of ‘facts’ or opinions or submissions pleaded in the statement of claim, contained in the affidavits filed by the plaintiff either in support of the statement of claim, and in opposition to the motion, as well as the correspondence addressed to the Registrar, the real purpose of the orders sought can be seen as an attempt by the plaintiff either to vent his anger or frustration against the defendant rather than resolve legal issues or to cause embarrassment in the narrow legal sense, not in the wider sense understood by the plaintiff in his submissions. As expressed, it would appear that the relief is sought is a ‘claim for relief’ as provided for in s 19(1)(c) or (d) Supreme Court Act 1970, within the jurisdiction provided for in s 23. The jurisdiction of all courts is limited by their constitutional competence ( Stack v Coast Securities (No 9) Pty Ltd (1983) 46 ALR 451 (at 460). The relief sought in paragraphs 2 and 3 of the statement of claim does not give rise to a claim in damages.
41 M J C Vile, in “ Constitutionalism and the Separation of Powers ” Clarendon Press (1967) expressed the doctrine thus:40 The powers of the Supreme Court in this regard, would need to be seen in the context of the “separation of powers” doctrine. The theoretical basis of this absence of power for courts to compel Members of Parliament to perform parliamentary duties or to compel Ministers to resign office or be “removed” or direct parliament to undertake parliamentary duties, lies with this doctrine. This is said to be the “cornerstone” of responsible government.
“It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislature, the executive, and the judiciary. To each of these three branches there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches”.
This is a definition of the ‘separation of powers’ in its ‘purest’ form.
42 Twomey (op. cit.) has observed that whilst the New South Wales Constitution Act (1902) does not impose a separation of powers (eg the Parliament may remove a judicial officer – s 56(1) Constitution Act (NSW)) the Parliament cannot act contrary to Chapter III of the Australian Constitution Act ( Commonwealth v Queensland (1975) 134 CLR 298 (at 315 per Gibbs J). The structure of the New South Wales Constitution identifies formally the three branches of Government (Parts 3, 4 and 9). The powers of the Legislative Assembly and Council to conduct their business are to be found in the Constitution Act (NSW) . Whilst the Supreme Court can interpret the Act, only the Parliament can amend it (s 7, 7A, & 7B of the Act)43 In Kable v D P P (1995) 189 CLR 84, it was pointed out that State Courts may exercise executive, legislative as well as judicial functions (eg Dawson J (at 84)) but that legislation of the Parliament of New South Wales was not “constitutionally” valid if the legislation conferred powers on Courts incompatible with the integrity and independence of a court invested with Chapter III powers under the Australian Constitution (per Gaudron, McHugh, Gummow JJ). No legislative or constitutional power has been specifically granted to the Supreme Court in any event to direct the Parliament as to how it conducts its business or to direct the Governor or the Executive as to how they exercise their powers under the Constitution Act (NSW). The wide powers under s 5 Constitution Act , to make laws for the “good government etc” of New South Wales were discussed in BLF v Minister of Industrial Relations (1986) 7 NSWLR 372 (eg. Street CJ, at 382-385)
44 Although one could embark upon a detailed analysis of the powers of the Supreme Court under its Act and its inherent powers, I see no need to undertake that task for current purposes. The defendant’s assertion that there is no legislative or inherent power for this Court to compel the Parliament to undertake an inquiry or for the Court to order “the removal” of the Premier or cause him to stand down is in my view correct. As Lumb states “ … (M)inisters hold office at the pleasure of the Crown i.e. the Governor, but that convention require that he (sic) acts on Ministerial advice” (at 77), or when it is apparent that a Premier has lost the confidence of his government the Governor may not act upon the Premier’s advice but would need to wait for action to be taken by Government members or after action by members of Parliament (at 78). A Minister of the Crown can only be removed “at the Governor’s pleasure” (s 35E Constitution Act 1902 ), subject to a network of conventions discussed at length in many publications. It should be pointed out that the order sought for a Parliamentary inquiry is directed at either the defendant or ‘his successor’. No order of the Court should usually bind an unnamed person, not a party to the proceedings.
Dismissal pursuant to Rule 13.4 or ‘strike out’ pursuant to Rule 14.28.
The principles
45 A court may dismiss proceeding either generally, or in relation to a particular claim for relief, if the proceedings are “frivolous or vexatious”, or if no “reasonable action is disclosed”, or if the proceedings are “an abuse of the court”. An abuse of process may include proceedings with no prosect of success. The Court may dismiss proceedings where the plaintiff’s case is so weak that to permit the proceedings to continue would be futile. That is, if there is no cause of action disclosed and there is no possibility that the facts pleaded give rise to a good cause of action the proceedings may be dismissed ( Shalhoub Holdings Pty Ltd v Commonwealth Bank of Australia [2006] NSWSC 607 ([28]-[39], Dey v Victorian Railway Commissioners (1949) 78 CLR 62 (at 91), Cox v Journeaux (No 2) (1935) 52 CLR 713, Peter Kent Development Pty Ltd v ANZ Banking Group Ltd NSWSC (unreported) per Hunt J, 6 May 1980).
46 A ‘dismissal’ should only be ordered where there clearly is no reasonable cause of action, as prima facie a plaintiff is entitled to have his case come to trial, if properly formulated ( Burton v The President of the Shire of Bairnsdale (1905) 7 CLR 76).
47 In Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 (at 942-945) (after considering Dey and General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125 (at 128-9 per Barwick CJ) Cross J posed the question to be addressed thus “(Is it) transparently clear that the plaintiff has no reasonable cause of action?” A cause of action may be seen not to be reasonable if it is “hopeless”, as occurred in Shalhoub Holdings Pty Ltd v Commonwealth Bank of Australia .
48 An application under this Rule may be done on the pleadings if, on examination, they showed the case is absolutely hopeless or there is no possibility of the facts pleaded giving rise to a good cause of action ( Dey v Victorian Railway Commissioners (at 90)). However if a pleading is merely ill expressed, it is not appropriate to dismiss or strike it out ( Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (at 536). The pleading must be “beyond saving” by proper or legitimate amendment ( MLC Co Ltd v Evatt (1970) 122 CLR 628 (at 631), Brimson v Rocla Concrete Pipes Ltd (at 942).
49 These various principles are discussed at greater length by Rothman J in Shalhoub at [28]-[36], and in so far as they expand upon matters set out above I respectfully adopt them.
50 Rule 14.28 provides that the Court may “strike out pleadings at any stage of the proceedings, if no reasonable cause of action“ is pleaded, the pleading has a tendency to cause prejudice, embarrassment or delay and/or when any pleading is clearly an abuse of process. An abuse, as earlier discussed, will include proceedings that are doomed to fail by reason of no cause of action disclosed (see Commentary to Ritchie’s Uniform Civil Procedure (NSW) Rule 14.28 (6354-55)) or proceedings that are commenced for an improper purpose, such as collateral advantage.
51 “Embarrassment” is not concerned with personal embarrassment, but with pleadings that are unintelligible, ambiguous, inconsistent, confusing or contain irrelevant allegations. As with powers of dismissal, if pleading defects can be cured by amendment the Court ought grant leave to amend, rather than exercise the power to strike out ( Wentworth v Rogers (No 5) at 536). This discretionary approach is said to be particularly appropriate where the plaintiff is a litigant in person. But even there, such a discretion may be exercised “on terms”, to give effect to s56 Civil Procedure Act . That provides that the ‘overriding’ purpose of the Act is to “facilitate the just, quick and cheap resolution of the real issues of the proceedings”. This overriding purpose must be given effect when exercising any power under the Rules or when interpreting them (s 56(2)). This obviously applies when considering Rule 13.4 as well.
52 Pleadings may be struck out only in clear or plain and obvious cases. Ordinarily the allegations said to give rise to the cause of action will be accepted as read ( Air Services Australia v Zarb NSWCA 26 August 1998 (unreported)) but an order may be made on the pleadings ( Dey ). The power may be exercised to strike out where the pleadings are solely for purposes of bad faith, or the proceedings cannot succeed, where for example it is said that there is “no reasonable cause of action”. The power to strike out should not be exercised if there is a real issue to be tried. Then, the claimed deficiency is not “plain and obvious” ( Dey v Victorian Railway Commissioners (at 91)). There should not be a preliminary investigation of the truth or reliability of the facts pleaded. Claimed falsity or improbability of impugned obligations does not justify the use of strike out powers, as this may involve a premature or potentially unfair trial of the factual issues ( E (a minor) v Dorset County Council; Keating v Bromley London Borough Council [1995] 2 AC 633 (at 740-1); Agar v Hyde (2000) 201 CLR 522 (at 577-8)).
The Statement of Claim
53 As earlier indicated the plaintiff seeks to claim damages for psychiatric injuries arising out of the conduct of the defendant “as particularised in paragraphs 43-46” of the statement of claim by the relief sought in paragraph 1. The plaintiff asserts “The amount of damages to be determine (sic) prior to trial”. At paragraph 43 of the claim the “Particulars Of Negligence” appear. They include “Breach of statutory duty”; “Breach of constitutional responsibilities”; “failure to fulfil Parliamentarian duties and obligations”; “unreasonable and careless decision to refer to the matter to PIC and ICAC”; “failure to conduct an investigation as requested by the plaintiff”; “failure to ensure the independence of the judiciary”; claims of failure to provide the plaintiff “natural justice”; failures to deal with the plaintiff’s claims “of the violation of his human, civil, legal and lawful rights”, “failure to respond to the plaintiff’s correspondences (sic)” appropriately or at all; “failure to take any step to rectify the damages inflicted on the plaintiff by the government, its members and/or its agents”.
54 Paragraph 44 of the statement of claim gives “Particulars of Improper Conduct” including interfering with the administration of justice; interfering with the judiciary; covering up various misconducts; attempt to protect “wrongdoers”; “failure to dismiss the Crown Solicitor”; “exercising power to terminate any legal proceedings that commences against him and his government” and ”failure to investigate serious misconduct of judicial officers who obstructed the course of justice”.
55 Paragraph 45 of the statement of claim refers to “Particulars of (the defendant) being unfit (to hold office)”. These include declining to deal with serious matters concerning his government, “introducing laws intended to course harms to the people of NSW”; “introducing laws intended to wreck the society”; failings in providing a “fair, competent and adequate”, justice system, policing system, legal system, court system; acting against the interests of the people and other matters.
56 The pleadings purport to set out the “duties” of the defendant at paragraphs 3, 4 and 5, including duties to manage and provide services and provide protection, safety and wellbeing of his electors, including the plaintiff. I note the plaintiff lives in Lakemba which is conceded by the defendant to be part of his electorate. The plaintiff pleads that the defendant was “obliged” to “deal, attend, investigate remedies and grievance caused to any of his electors including the plaintiff, by incompetence, inadequacies and unfairness of such services”. He pleads a denial of access to court “in accordance with the principles of natural justice”. He pleads that the defendant was “under a duty to achieve and maintain adequate standards of investigating authority within his department, for the purpose of dealing with serious allegations of misconduct, such as those referred to him by the plaintiff in connection with members of his cabinet, including the Police Minister and the Attorney General”. He claims breach of “statutory duty” and “constitutional duty”, the latter arising out of failure to “adhere to the oath on which he affirmed well and truly to serve in the particular office ….” (sic). (Para 6-7)
57 Further, the plaintiff states that the defendant “being the head of state” has failed to perform, and was negligent, in the fulfilment of his parliamentarian duties, his responsibilities and obligations towards the plaintiff ... “such conduct was the primary course of the recent psychiatric illness the plaintiff is currently suffering from” (emphasis added). The plaintiff at paragraph 46 in his “Particulars of Damages” (sic) asserts “major depressive order, post traumatic stress disorder, emotional liability (sic), martial (sic) breakdown, severe shock, constant worry and fear, nervous tension, trauma, anxiety, strain, hassle (and) loss of libido”.
58 The plaintiff states in his statement of claim that he was prejudiced by the conduct of the defendant in failing to “take appropriate steps to deal with serious matters relating to serious misconduct” committed by various people, failing to “take appropriate steps to deal with serious misconduct committed by persons for whom the defendant was overseeing and was responsible and were employees of his department”, “such misconduct has caused the plaintiff to suffer … psychiatric and psychological damages”. He claims a violation of legal and lawful rights by the defendant’s purported “failure to provide safeguards to protect the independence of the judiciary”. He also claims damage to himself by reason of the defendant introducing “various laws which prove to be against the interests of the people of New South Wales, aiming at the destruction of the family unit and the society in general, such laws have in effect traumatised the plaintiff”.
59 Although the factual matters asserted as relevant to the claim of breach of duty or negligence and damage are not articulated in full, relying upon the affidavit filed with the statement of claim, which like the statement of claim is a mixture of asserted fact, opinion, submission, theory and the like, it would appear the plaintiff’s claim is that there was police misconduct against his wife and/or daughter in 2002, the plaintiff subsequently sought an inquiry into this alleged misconduct and commenced proceedings in the District Court seeking damages for himself and that claim was summarily dismissed. The dismissal was not the subject of appeal. The plaintiff apparently also wrote to the defendant in either his capacity as Premier, or in his capacity as the plaintiff’s local Member of Parliament. The pleadings and the evidence that can be found in the affidavit did not make this clear and mixed the two capacities up.
60 The plaintiff claims that, on 8 September 2005, the defendant informed the plaintiff that he made an order that an inquiry into the matters that aggrieved and distressed the plaintiff would be conducted by his “Police Minister and his Attorney General”, but no investigation ever took place causing the plaintiff to suffer “anxiety, sever (sic), stress and depression”. He claims it was the responsibility of the defendant to ensure that his instruction was complied with. He states that he wrote to the defendant on 13 November 2007 that the “failure to conduct an investigation into the matter had resulted in the matter being widened to include not only the NSW Police, but to involve the judiciary, the Attorney General and others”. He asserts in the statement of claim that the defendant responded to this letter by telling the plaintiff he was “referring the matter to the PIC and the ICAC which was “an irresponsible approach indicting his unwillingness to fulfil his duties expected of him as Premier”. It is claimed that this course of action also was an acknowledgement by the defendant that his instructions had not been carried out earlier. The referral to PIC (Police Integrity Commission) and ICAC (Independent Commission Against Corruption) was said to be “not done in accordance with any written law … and doing so caused the plaintiff to suffer “sever (sic) depression, stress and anxiety”. He asserts that, in fact, no further investigations were conducted and the plaintiff was “aggrieved and traumatised” because the failure to conduct investigations was a failure of various people including the ”Police Commissioner, the Attorney General, the Crown Solicitor”, the legal system and “the Judges of the New South Wales Supreme and District Courts”, for whom the defendant was “responsible” (para 28).
61 The plaintiff asserts that the defendant wrote to him on 23 January 2008 “telling the plaintiff not to contact him again regarding this matter and he will not respond to any further correspondences from the plaintiff”. He claims various conspiracies and cover ups and makes various assertions as to his rights, for which the defendant “and his Ministers, Servants and/or agents showed a conscious and contumelious disregard”. This has caused the plaintiff to “live in anxiety and trauma, as it became evident that there is an absence of reliable and trustable justice system in this society an apparent fact that caused traumatic damages to the plaintiff”.
Contentions of the parties
62 The defendant submits principally, in relation to the claim of negligence or breach of duty, that “no reasonable cause of action is disclosed”. Alternatively, that the proceedings “are an abuse of the process of the Court” or that the proceedings are “frivolous and/ or vexatious”.
63 The defendant submitted by reference to the various “duties” claimed by the plaintiff that there is no relevant articulation of any duty owed at common law or statutorily by the Premier, in his capacity as such, or as a member of parliament, to Mr Hassan or for that matter “any other electors”. The claimed statutory duties identified in the pleadings are “unidentified” and in fact the pleadings referring to statutory and constitutional duties do not identify the relevant “right of action” that arises. The claims are, to use Mr Hutchings words “at best …. the expression of a theory or belief”.
64 Further, referring for example to paragraphs 10, 11 and 12 of the statement of claim, involving a claim of a failure to take “appropriate steps” relating to alleged misconduct, there is said to be a failure of particularity as to what the failing is and what act or omission the plaintiff claims relates or constitutes relevant misconduct. The defendant went through the various paragraphs, making submissions about whether they were in proper form, pleaded relevant facts or causes of action and pointed to particular paragraphs which involved submissions, statements of political theory and claims against others, everything but proper pleadings.
65 Ultimately, on analysis of all that was put on behalf of the defendant, the complaints were that there are no recognisable causes of action pleaded, that amendment would not change the situation because no relevant duty of care existed between the defendant and plaintiff, no causal connection could reasonably be established between any proven injury and the claimed conduct of the defendant and, essentially, the claims made by the plaintiff are so conspiratorial and fanciful they have no prospect of proof.
66 The plaintiff tendered in court an “affidavit” which was received as essentially his written submissions in relation to the matters advanced, or anticipated would be advanced, by the defendant. Apart from complaint as to the filing of the motion (dealt with earlier) the plaintiff also made preliminary complaint that the defendant’s submissions were not in writing. No requirement existed for the defendant’s counsel to produce written submissions. No direction had previously been given to the Court, but written submissions would have been helpful for the plaintiff notwithstanding how obviously hopeless, in the eyes of the defendant’s legal representatives, were the claims made against him. This of course is not a personal criticism of the defendant’s legal representatives, but they ought to have appreciated the assistance such written submissions may have provided both the Court and the plaintiff. I offered the plaintiff an opportunity to respond to Mr Hutchings after he had access to the transcript, to ensure that he had every chance to respond in detail. However, notwithstanding this offer, the plaintiff was insistent that he proceed. In any event, as earlier indicated, he produced the prepared “submission”, in the form of the affidavit, which I have taken into account. As with his response to questions raised with him by myself in relation to the power of the Court to make orders as sought in paragraphs 2 and 3 of the statement of claim, when challenged to point to matters that provided a foundation for his legal, as opposed to his factual, claims the plaintiff insisted that these were matters to be established at trial and he did not want to be in the position of having to “prove these facts”. I offered him time to consider my questions on such matters but he declined. He stated, in effect, that the matters raised in his statement of claim needed to be tried before a decision could be made as to issues of jurisdiction and the like. He said that, in any event, the “pleader … is generally not required to state the legal consequences which follow from the fact upon which he relies … rather, it is for the Court to declare the law arising upon the fact provided before it”.
68 The affidavit (or “submission”) of 22 August 2008 asserts that there was a “well defined cause of action” claiming that the pleading stated facts “relating to the misconduct of the defendant that resulted in inflicting serious psychological damages on the plaintiff doing him injustice, failure to follow the rules as required by law and to fulfil legal and lawful obligations” (sic). The plaintiff asserted “ the burden of disproving these facts lies on the other party ” (italicised in the affidavit). The affidavit or submission ranges across matters dealt with in the statement of claim and the supporting affidavit, asserts that it will be an error of law for the Court to interpret the phrase “disclose no cause of action” in isolation of the claimed facts or allegations against the defendant. Amongst other matters it notes, quite properly, the caution that needs to be exercised in dismissing an action and complains that the defendant has not particularised the deficiencies. It repeats allegations made verbally about the failure of the Registrar to act properly and resulting injustice to the defendant. He states that the Registrar was not acting properly because “the defendant was allowed to ask for the plaintiff’s pleading to be stuck out but the plaintiff was not allowed to ask for the defendant to file a defence”. The plaintiff asserted his right to access to the Court to try his case and makes comments about the need for independence of the judiciary and the fact that “politicians … continue to break the law openly and publicly yet they continue to hold onto their positions”. He asserted:67 The other substantive issues raised by the plaintiff relevant to resisting the motion were the conduct of the defendant in allegedly obstructing the course of justice, by failing to file a notice of appearance, failing to file a defence, expediting the status conference and failing to comply with Rule 18.1 (presumably because the defendant did not file a motion to expedite the Status Conference). Yet, on the other hand, attempting to obstruct the course of justice by filing the motion currently being entertained. It was submitted that when the defendant was represented at the proceedings before the Registrar “(he) was allowed to address the Court in defiance of Rule 6.1”. That is because he had not filed an appearance. The defendant was said to have “obstructed” justice by failing to comply with the orders of the Registrar to do this. Further, the conduct of the defendant was unlawful in breaching Rule 12.11 (earlier referred to). The Supreme Court had “failed the plaintiff’s lawful rights and assisted in disadvantaging the plaintiff’s rights by (allowing) the defendant’s failure to comply with Court (Rules)”. The plaintiff also asserted that no grounds were stated for making the application to set aside the statement of claim. Ultimately the plaintiff asserted that he had been “aggrieved and wronged by the conduct of the defendant and (he was) entitled to seek review and bring the defendant to account for his action”.
“It is evident and has been demonstrated over and over again that those who make the law are the ones who disobey the law”.
69 The plaintiff cited Brimson (to which earlier reference has been made) and other authorities supporting the proposition, which I accept, that orders should not be made except in a clear case requiring dismissal. Ultimately he asserted that the statement of claim should not be struck out on the grounds “the Court has the power to dismiss the defendant’s application as an abuse of process of the Court”. The defect referred to (by the defendant) is “radical”, “the issue should be determined on the face of the pleading, prove (sic) comes at trial”. He wrote that “the application to strike out is made at a very early stage without any evidence”, “the plaintiff should not be “driven from the judgment seat” without the opportunity to argue his case”, “the action will be stopped by the defendant’s application without the question of its justification ever brought before a court” and “it was not possible, having regard only to the statement of claim, to assert that the cause of action pleaded did not have a chance of success”. The plaintiff asserted that it was the defendant who was abusing the processes of the court, the pleadings were not embarrassing, the Supreme Court is biased against parties who bring cases against the Government and the Judges of the Supreme Court have failed the test of “delivering justice”. He stated that he should be permitted to permit to proceed with the case without “undue interference from anyone”. He stated that Kirby J of the High Court, was correct in Simanovic v The Queen [1998] HCA 40 when he said;
“Courts remain the ultimate protector of everyone in society, including prisoners who have no lawyers to speak for them”.
70 Citing Canadian authority, he also asserted that if wrongs were ignored “then there will be nothing left for each person (but) to take the law into his own hands. Loss of respect for the Courts will quickly result in the destruction of society”. With this general observation I respectfully agree.71 I have set out in greater detail than ordinarily would be the case the matters raised by the plaintiff. Although not all matters raised have been referred to in this judgement, I have had full regard to everything said and written by the plaintiff in opposition to the motion of the defendant in my consideration of the issues.
Consideration
72 Putting aside issues identified by the defendant as to the form of the pleading, the manner of expression, the failure to clearly articulate specific duties in respect of which the defendant is said to be in breach and matters of what might be described as a “technical character” having regard to the requirement of the Rules, there appear to be important threshold issues that require consideration. I agree with the submissions of the defendant that the pleadings do not articulate with any precision the character of the duty owed by the defendant to the plaintiff warranting the relief sought in paragraph 1 of the statement of claim, beyond claiming that such a duty exists by reason of the fact that the defendant is either an elected member of the New South Wales Legislative Assembly or that he is a Minister of the Crown, holding the position of Premier, thus having some ultimate responsibility for the conduct of others. But the ‘technical pleading issues’ raised in general by the defendant ultimately do not require detailed treatment.
73 Unaided by any precision in the pleadings I understand the claim in negligence and breach of duty, giving rise to the relief sought in paragraph 1 of the statement of claim, to be that the defendant had a duty of care towards the plaintiff, by reason of his parliamentary and/or executive positions and the responsibility of those positions to undertake or direct proper investigation of the plaintiff’s complaints about the treatment of himself and his family by servants of the State, Ministers of the Crown and the Courts. He claims that the defendant either failed to direct proper investigation and inquiry or that others, at the direction of the defendant, failed to carry out properly, or at all, directions and instructions the defendant allegedly gave. Alternatively, the defendant referred matters for investigation to inappropriate authorities causing harm to the plaintiff. Because of these matters the plaintiff suffered damage in the nature of psychiatric injury, mental anguish and the like. No intended tort is pleaded, although, it is alleged the defendant influenced various courts, judicial officers and court officials to deny the plaintiff justice. I understand these various claims to be a statement of alleged fact that, by doing so, the defendant acknowledged his “wrong doing” which had caused damage, or aggravated damage already done.
75 Section 5B(2) provides that in determining whether a reasonable person would have taken precautions against a risk of harm, the Court is to consider the following (amongst other relevant things):74 The claimed action in this regard is covered in part by the Civil Liability Act 2002, particularly Part 1A (ss 5B,C, D). This Act provides (s5B(1)) that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable , that is, it is a risk which the person knew or ought to have known and the risk was not insignificant and in the circumstances a reasonable person in the person’s position would have taken those precautions . (emphasis added)
(a) the probability that the harm would occur if care was not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm, and
(d) the social unity of the activity that creates the risk of harm.
76 Section 5D provides that a determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm and
(b) that it is appropriate for the scope of the negligence liability to extend to the harm so caused.
77 Section 5D(2) provides:
“In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
78 Further, s 5D(4) states:
“For the purpose of determining the scope of liability, the Court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
80 Identifying the scope of a relevant ‘duty of care’ has been the subject of a great deal of recent debate and discussion, sometimes without agreement by Courts and Judges of higher authority. Where a duty is claimed that does not exist in the case law, which is alleged here in effect by the defendant, the Court will be required to engage in a “multifactorial” or “salient features” analysis as discussed by Spigelman CJ in Hunter Area Health Service v Presland [2005] NSWCA 33 at [9]-[21], an approach recently approved in State of New South Wales v Tyszyk [2008] NSWCA 107, per Campbell JA at [137]. Previously, in Sullivan v Moody (2001) 207 CLR 562, at [50], the majority of the High Court in that decision referred also to the problems in determining the existence, nature or scope of a duty of care. After citing with approval Lord Diplock’s observations in Dorset Yacht Co Ltd v Home Office [1970] AC 1004 their Honours said at [53]:
79 The onus in determining liability for negligence is on the plaintiff in proving, on the balance of probabilities, any fact relevant to the issue of causation (s.5E).
“Developments in the law of negligence over the last 30 or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless, that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is “fair” or “unfair”. There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted”.
82 In Agar v Hyde (2000) 201 CLR 522 the majority acknowledged that it may be difficult for a court to say from the pleadings that a claim by a plaintiff that the defendant is liable in negligence, is bound to fail because it is not arguable that the defendant owed the plaintiff a duty of care (at 577). The majority pointed to some examples where this had occurred ( Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241: Mutual Life and Citizens Assurance Company Ltd v Evatt (1970) 122 CLR 628). But the majority, after noting the comments of Barwick CJ in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd, ((1981) 148 CLR 457, at 473), observed (at 578);
81 This matter is such a case. Further, there are the difficulties in this claim in identifying a relevant breach of duty in accordance with common law principles enumerated by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8, recently affirmed in NSW v Tyszyk [2008] at [4]-[5] per Giles JA.
“The result is that frequently the conventional form of pleading in an action of negligence will not reveal the alleged duty with sufficient clarity for a Court considering an application for summary termination of the pleading to be sure that all of the possible nuances of the plaintiff’s case are revealed by the pleading. Further, and no less importantly, any finding about duty of care will often depend upon evidence which is given at trial. Questions of reliance or knowledge of risk are two obvious examples of the kinds of questions in which the evidence given at trial may take on considerable importance in determining whether a defendant owed a plaintiff a duty of care.”
83 I have heeded this cautionary approach.84 Their Honours in that decision pointed out however, that duties of care were owed to individuals, although that does not mean a duty of care could relate to many persons, nor does it mean that a person cannot owe a duty of care to someone whom he or she does not know or cannot identify. However, it is incumbent upon a claimant “to establish breach of an independent duty of care to himself as a particular individual”. Further, their Honours pointed out that the common law does not ordinarily impose a duty on a person to take action where no positive conduct of that person has created a risk of injury to another person.
85 Gleeson CJ, agreeing with the majority, noted that there was no existing category of case in which a duty of care has been held, by the High Court, to exist which covered the case at bar, with its implications for decision makers in the game of rugby at a global level for all individual players. Whilst the issue of “neighbourhood” as discussed in Donoughue v Stevenson [1932] AC 562 (at 580) was not an issue, in Agar , to paraphrase the conclusions in Donoughue, the rule makers made rules which exposed players to the risk of injury in the sense that they laid the conditions of a physical contest in which people are likely to be hurt. Harm is foreseeable from the rugby rules, however it did not follow that members of the Board were under a legal duty of care to the players of the kind alleged (at 563-564). Here, no actionable harm could be foreseeable from the lawful exercise of ministerial and parliamentary duties.
86 Of course, his Honour was concerned with those who were injured in a voluntary sporting contest and were, “affected by the action or inaction of the rule makers in relation to the rules of the game”. Here the situation is not analogous. However the point should be made that I am unaware of any duty of care established in the case law owed by a politician, or a Minister of the Crown, to prevent any foreseeable injury that is claimed as a result of a failure by a person, such as the defendant, to conduct an inquiry in relation to the conduct of others, direct an inquiry, or fail to direct such an inquiry be conducted, or by referring a complaint against others for investigation by an independent investigative body such as the PIC or the ICAC. I am also unaware of a duty of care established by case law to do the things claimed to have been done, or not done, by the defendant.
87 None of these matters I hasten to say were argued in any detail before me and, as pointed out elsewhere in this judgment, the issue of the scope of duty of care, the formulation of the test for establishing proximity (or neighbourhood) and the issue of foreseeability have not been without some debate in recent years by superior courts.
88 In Hunter Area Health Service v Presland the Chief Justice (although in the minority) pointed to the absence of “authoritative guidance” from the High Court for determination of when a common law duty of care exists with respect to exercise of statutory power.
89 Here the plaintiff alleges, in part, a breach of ”statutory” duty without propounding any details as to what relevant duties, or the statutory foundation for them, the defendant had towards him. Neither does he plead or indicate how the relevant statutory duty was relevantly exercised having regard to the usual situation where negligence is alleged from the exercise of statutory responsibility (such as discussed in Presland, Romeo v Conservation Commission (NT) (1998) 192 CLR 431, Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 and Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at [146]-[149].
90 On the analysis of Spigelman CJ in Presland (at [9]-[21]), adopted in Tyszyk , it could not be concluded that the defendant had any duty of care arising from any perceived or conceived statutory duty. In the context of the duties of a member of parliament, a Minster of the Crown or, for that matter, a Premier of an Australian State, assuming a relevant statutory basis for exercising care towards the plaintiff, or the class of persons of which the plaintiff forms part, a common law duty of care should not, and could not, be imposed if it had a tendency “to disadvantage the performance of statutory duty”, “would undermine the effectiveness of any relevant duties”, “distort the focus of the decision making process”, or cause decisions to be made in “detrimentally defensive frame of mind”.
91 There is no basis for concluding that there was a relevant power held by the defendant of which the plaintiff was a “beneficiary”, nor that any particular power was conferred upon the defendant for the purpose of protecting the plaintiff from the risk that is claimed to have materialised, that being the risk of mental and other related damage by responding to the plaintiff’s demands for justice, or not responding, as the case may be. It is to be borne in mind that claims against individuals and organisations that have allegedly injured the plaintiff and his family and thus given rise to the demand of the defendant for action, have already been dismissed in the District and Supreme Courts and no appeals have been lodged by the plaintiff in relation to those decisions.
92 There is no basis for concluding that the defendant in any event had any relevant ‘control’ of, or in relation to, the plaintiff. On one view, as pleaded, the claimed damage arose as a consequence of the defendant’s claimed “control” of others, Minsters of the Crown, servants of the Crown, Judges, the Courts and the like. There is no relevant “vulnerability” identified. If an elector seeking redress from politicians and Ministers in relation to the actions of their servants, or other servants or employees of the Crown and statutory authorities, could claim that the Member of Parliament or Minister of the Crown was personally liable because the elector was unable to protect him or herself from the consequences of the result of their petitions, requests or demands one might have thought that the scope of actions would be endless. Having regard to s 5D Civil Liability Act it cannot be seen or shown, on the pleadings, as to “why” responsibility for the claimed harm should be imposed (s 5D(2) and (4)).
93 However, even if a duty of care could be conceived as being owed by the defendant to the plaintiff, the defendant could not have reasonably foreseen, or foresee at all, that the damage claimed, or the risk of damage of the type claimed, could, or would, arise. In fact, one could not contemplate any form of psychiatric, physical or mental harm that could be foreseen (reasonably or unreasonably) from responding to an elector’s request for redress. There is no factual basis for concluding any causal connection between the damage claimed and the conduct alleged.
94 There is also in this matter the issue of lack of good faith by the plaintiff relevant to assessing the claimed damage and its causes. I have not seen the pleadings in the District Court proceedings terminated in 2005 by his Honour Judge Geraghty, but the judgment of Johnson J of this Court shows that the plaintiff in that action, which was terminated on 10 November 2006, claimed almost identical damage to that claimed in this action, the cause of that damage arising allegedly before the acts and/or omissions claimed of the defendant in this matter (see Hassan v District Court of NSW & Anor 10 November 2006, at [28]).
95 Although the causes of action in those proceedings are different, the similarity in claim of damage, assuming that in fact the plaintiff does suffer from psychiatric injury of various types, raises an aspect of “abuse of process” discussed by Johnson J at [35], citing Rippon v Chilcotin Pty Ltd (2001) 53 NSWLR 198 (at 201). Here, this statement of claim involves a claim for damages or injury, previously pleaded as arising from other alleged tortious conduct by others. As it transpired, those previous claims had no basis at law or were otherwise hopeless.
96 There is no relevant “constitutional” duty of the defendant to the plaintiff which has been identified or is identifiable, whether by reason of his position as a Minister of the Crown or as a member of the Legislative Assembly. The Legislature has power to “make laws for the peace, welfare and good government of New South Wales in all cases whatsoever”, subject to proviso(s 5 Constitution Act (NSW) 1902). This power does not establish any relevant duty to the plaintiff, as an individual or as part of a class of individuals, for which the defendant bears any individual liability for any suit or claimed cause of action. There is a complaint that the defendant had introduced laws “intended to cause harms (sic) to the people of NSW” or to “wreck society” etc, at paragraph 45 of the statement of claim. I can find no basis for concluding that in this matter these claims have any political, constitutional or legal validity or that they give rise to any relief in this Court. Apart from ‘immunity from suit’ arising in the context of parliament privilege, I am unaware of any wider immunity of Members of Parliament, but the legislature has wide discretion to exercise its powers under s 5 Constitution Act (NSW) ( BLF (NSW) v Minister for Industrial Relations (1986) 7 NSWLR 372).
97 Finally, the matters raised by the plaintiff as to the failings of the defendant to comply with the Rules, eg. in failing to file an appearance or a defence, purported failure to comply with Rule 12.11 and the like, set out above, have no merit or relevance to the issues raised by the defendant in relation to the issue of dismissal or strike out. No prejudice to the plaintiff whatsoever can be identified, by him or by the Court, from these purported failures to comply with Rules. The motion is not invalidly filed or otherwise invalidly before the Court. In determining that the statement of claim be dismissed, rather than struck out, I have determined in light of earlier findings that there would be no utility or purpose in permitting the plaintiff to replead his cause of action or other relief sought.
Conclusion
98 Although I understand that the plaintiff genuinely believes that he has been aggrieved I conclude that there are no reasonable causes of action in negligence or breach of duty disclosed on the pleadings. In fact, the claim is “hopeless”. The proceedings are vexatious and constitute an abuse of process. Relief sought in Paragraphs 2 and 3 of the Claim is beyond any power of this Court. I therefore will order that the statement of claim be dismissed pursuant to Rule 13.4, in accordance with the order sought in paragraph 1 of the Notice of Motion filed by the defendant.
99 The defendant further seeks an order pursuant to Rule 4.15 that the statement of claim be sealed or removed from the Court file as it is vexatious and irrelevant. Allowing for the need to recognise the primacy of the requirement of claims of this type to be conducted in open court, and accepting all that was discussed on this issue by Johnson J at [45]-[46] of his judgment, earlier referred to involving the same plaintiff, in this matter, having regard to the matters justifying dismissal of the statement of claim, I am of the view that the statement of claim and the affidavits in support of it of 14 February and 22 August 2008, satisfy the tests that warrant an order that they be sealed in an envelope and placed on the Court file until further order of the Court.
Orders
2 The plaintiff pay the defendant’s costs of the Motion.1 The statement of claim referred to in the Notice Of Motion filed 14 February 2008 is dismissed. The Statement of Claim and the affidavits of the plaintiff sworn 14 February 2008 and 22 August 2008 are to be placed in a sealed envelope on the Court file and that sealed envelope may not be opened except by order of the Court.
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