Henderson v Bakharia
[2001] QSC 370
•1 October 2001
SUPREME COURT OF QUEENSLAND
[2001] QSC 370
File No S6281 of 1997
BETWEEN:
PAUL HENDERSON
Plaintiff
AND:
EBRAHEM BAKHARIA
Defendant
MOYNIHAN J – REASONS FOR JUDGMENT
DELIVERED ON: | 1 October 2001 |
HEARING DATE: | 27 August 2001 |
ORDER: | The action is struck out. |
CATCHWORDS: | PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – PARTICULARS – Application by defendant to strike out plaintiff’s action – where statement of claim is substantially incomprehensible – whether statement of claim fails to disclose a reasonable cause of action. Bankruptcy Act 1966 (Cth) s60 Henderson v McCafferty & Ors [2000] QSC 410 |
COUNSEL: | S J Keim for the applicant / defendant. The respondent / plaintiff appeared in person. |
SOLICITORS: | Roberts & Kane Solicitors for the defendant. |
This defendant applies under r 293 of the Uniform Civil Procedure Rules 1999 (UCPR) to strike out the plaintiff’s action. The plaintiff claims damages against the defendant for:
“ (a) Misfeasance in a public office;
(b)Intimidation;
(c)Defamation;
(d)Deceit;
(e)Conspiracy;
(f)Economic loss to date of trial;
(g)Future economic loss;
(h)Contingent liability to the plaintiff’s clientele;
(i)Aggravated and special damages including the outlays expended in ascertaining the nature effect and extent of the actions taken by the defendant and public officers their servants or their contractors acting in concert with him;
(j)Loss of ability to obtain past present and future earnings;
(k)Exemplary and punitive damages of Three Million Dollars $3,000,000.00;
(l)Interest pursuant to the provisions of the Supreme Court Act (formerly the Common Law Practice Act – Sect. 72);
(m)Costs.”
The plaintiff is a solicitor and the defendant a school teacher. They met in 1994 when the defendant approached the plaintiff apparently seeking legal advice in controversial circumstances which are at the centre of the action. The plaintiff’s wife was a teacher and was involved in litigation in respect of her employment. The plaintiff was acting for her. The following, without purporting to be exhaustive, will give something of the flavour of the statement of claim.
The core of the plaintiff’s complaint appears to be para 13 of the statement of claim which provides:
“During the year 1994 a litigation plan in respect to the defence of the above actions [brought by the plaintiff’s wife] was devised by some of the above agencies or public authorities or the delegates of the principal officers thereof which involved, inter alia:
(1)the issue of operational instructions to the defendant and the acceptance by the defendant of those instructions to authorise him to attempt to gain access to and information from the plaintiff in his capacity as a Solicitor of the Supreme Court of Queensland
(2)tendering information thus obtained to his employer for the purpose of destroying the plaintiff’s credibility as a witness in the said litigation
(3)the defendant’s employer creating for him and the defendant thereby assuming a false legend as a person bearing a genuine grievance against the Department of Education to facilitate the defendant’s approach to the plaintiff.
(4)the defendant attempting to establish contact with the plaintiff on divers [sic] occasions between the 24 March 1994 and 11 October 1994 by falsely misrepresenting and concealing the true facts of his actual identity and his total status with the State of Queensland
(5)between the 24 March 1994 and 11 October 1994, the defendant intentionally attempting to deceive and harass the plaintiff in respect to his expected status as witness in litigation between the plaintiff’s wife and their common employer
(6)interfered with the course of justice within the said litigation.
(7)participated and co-operated in an abuse of process within an existing Supreme court action.”
The defendant is not alleged in terms to have been a party to the litigation plan the intent of which was apparently to subvert or defeat the plaintiff’s wife’s claims. I will return in a moment to the basis of the defendant’s alleged liability. In the meantime at least a dozen or more government departments, public authorities and other agencies, ranging from the Premier’s Department and a number of other departments to the Queensland Law Society, the Information Commissioner, the Ombudsman, the Queensland Police and the CJC together with the Queensland Teachers’ Union, the State Public Service Federation of Employees and the Queensland Police Union and their respective solicitors and “other registered Industrial Unions or their Solicitors” were apparently implicated in the litigation plan without any factual basis being pleaded in respect of many of them to found their involvement.
The defendant’s role allegedly is that although “ostensibly employed” only as a teacher, he “in reality was performing additional or collateral duties as an unsworn police officer or alternatively as a police informant with the the [sic] Queensland Police Service and/or the Criminal Justice Commission”.
Paragraphs 4, 5 and 6 of the statement of claim then allege:
“(4)At all material times the defendant’s siblings carried out similar additional or collateral operational police or police informant duties for the State of Queensland.
(5)At all material times the defendant and his male siblings were interchangeable and were interchanged in field operations to collect and store tactical and/or strategic intelligence authorised and collected by agencies or public authorities of the State of Queensland.
(6)At all material times the defendant and/or his said siblings acted with the knowledge and operational assistance of the Director General, Department of Education, the Deputy Director General (Corporate Services), Department of Education and their delegates to target the plaintiff and his wife.”
Nothing is pleaded to identify the defendant’s siblings and no attempt is made to attribute specific activities to the defendant. In fact as a general comment the pleading is short on factual bases and long on assertion.
Paragraph 14 of the statement of claim alleges that the defendant “or alternatively a person impersonating the defendant with his acquiescence, alone or alternatively in concert with others at divers [sic] times” persistently sought to cause himself “or his legend identity” to become a client of the plaintiff and to engage in various activities which are canvassed in the statement of claim.
The defendant (or it seems an interchangeable sibling or an impersonator) is for example alleged to have acted in concert with others to prevent or deter the plaintiff from exercising his legal right to access information by threatening industrial action against the Department of Education. The Information Commissioner and Ombudsman are alleged “individually and collectively” to have acted in abuse of their duties and powers in respect of access to information without it being made apparent how the defendant was implicated in the activities, assuming for the purpose they were improper.
The defendant complained about the plaintiff to the Queensland Law Society which is alleged to have kept the file recording the defendant’s complaint active and to have continued to “harass and interrogate the plaintiff in respect of the defendant’s complaint and the alleged inadequacy of the plaintiff’s response”. Further as to the plaintiff’s complaint about the Society see Henderson v McCafferty & Ors [2000] QSC 410 (Unreported decision of Williams J as then he was). Apart from the fact that he complained there is little to implicate the defendant in this activity.
Paragraph 30 of the statement of claim is to the effect that the defendant obtained legal advice from a delegate of the Director-General of Education “with the intention of causing further foreseeable damage to the plaintiff as a Solicitor of the Supreme Court of Queensland”. There is nothing to connect allegations of this kind, there are other examples, to any cause of action and it is not obvious that there is anything improper in obtaining legal advice which may have adverse consequence for the plaintiff.
I turn to the causes of action relied on. One of these is misfeasance in public office. It is true that the defendant was employed as a school teacher. It is doubtful that he was employed in public office. In any event his activities, assuming they are made out, were apparently not in relation to the office of school teacher. The performance of “additional or collateral duties as an unsworn police officer or . . . police informant” are not alleged to be a public office. It is difficult to see how they could be. It is even more difficult to see how the activities of the interchangeable but unidentified male siblings or others could be in the performance of a public office by the defendant.
So far as intimidation is concerned, the only threat appears to have been that against the Education Department of industrial action. Such acts may have of course been lawful and it is not clear what consequence it is said to have led to, so far as the plaintiff is concerned. The claim of deceit seems to be founded on allegations that the defendant made a number of allegedly false statements to people other than the plaintiff and that these led to enquiries and investigation and, allegedly, other activities. There is however no plea that the plaintiff acted on any false information from the defendant, that is central to the cause of action of deceit. The pleading lacks the essential elements of a plea of defamation in terms of identifying words said, the occasion of the publication or any imputation relied on by the plaintiff.
The claim for damages under the various heads is global with no attempt to differentiate among the causes of action, specific activities or their consequences. Among the particulars of loss and harm are “social and domestic disadvantages”, “negative effects on personal pride and self-confidence”, “loss of valued longstanding clientele and the good will of a Solicitor’s Practice”, “loss of opportunity for professional development and the achieval [sic] of higher office as a law officer for the State of Queensland”. No particulars are supplied in respect of any of these heads of claim a number of which appear to, in terms of the current law, be somewhat novel.
To summarise, the statement of claim is substantially incomprehensible. It is apparent in many respects that it failed to plead the facts relied on to found assertions of improper conduct on the part of the defendant. In a number of cases it is deficient in laying a basis to justify labelling the conduct as improper or harmful to the plaintiff. It alleges improper conduct on the part of others without pleading any proper basis for connecting the defendant with improper conduct. The notion of a trial being conducted before a jury on the basis of the statement of claim is almost inconceivable.
It is true that the plaintiff is a discharged bankrupt. However a bankrupt may continue an action for “any personal injury or wrong done to the bankrupt, his or her spouse . . .”; Bankruptcy Act 1966 (Cth) s 60(4). The activities complained of in the statement of claim are directed at the plaintiff’s reputation and character, not at any property interest. Even if the plaintiff’s wife’s litigation was said to involve a property interest there is no evidence that the plaintiff shared in that interest. The provisions of s 60(4) of the Bankruptcy Act are anticipated by UCPR 72(3) and leave under UCPR 72 is not necessary. It seems leave pursuant to UCPR 389(2) is unnecessary; Turner v Brisbane City Council [1964] QWN 31; Leach v International Portion Foods Pty Ltd [1984] 2 Qd R 152. If leave is necessary I grant it.
The statement of claim fails to disclose a reasonable cause of action against the plaintiff and its deficiencies, some of which I have identified, render it vexatious and an abuse of process. The plaintiff has no real prospect of success. The action should be struck out.
0